"CBS Sunday Morning" recycles March 2016 show on guns in America

CBS Sunday Morning on July 31, 2016 was hosted by Lee Cowan and was largely a recycle of a previous episode in March on guns and America. See IPBiz post: http://ipbiz.blogspot.com/2016/03/cbs-sunday-morning-does-patent-of.html


The moment of nature concerned lower Antelope Canyon, near Page, Arizona. Unmentioned was the 1997 disaster in which eleven people were killed in a flood. Wikipedia notes:


The lone survivor of the flood was tour guide Francisco "Poncho" Quintana, who had prior swift-water training. At the time, the ladder system consisted of amateur-built wood ladders that were swept away by the flash flood. Today, ladder systems have been bolted in place, and deployable cargo nets are installed at the top of the canyon. At the fee booth, a NOAA Weather Radio from the National Weather Service and an alarm horn are stationed



link: https://en.wikipedia.org/wiki/Antelope_Canyon

Osgood has missed the last three shows (two by Pauley and now the recycle of Cowan).
Note the story: Charles Osgood prepping to leave ‘CBS Sunday Morning’ later this year
link: http://www.nydailynews.com/entertainment/tv/charles-osgood-step-host-cbs-sunday-morning-article-1.2497458

ADVANCED GROUND INFORMATION SYSTEMS [AGIS] loses at CAFC on 112(6), 112(2) issues

Advanced Ground Information Systems, Inc. (“AGIS”)
appeals the decision of the United States District Court
for the Southern District of Florida in Advanced Ground
Information Systems, Inc. v. Life360, Inc., No. 14-cv-80651
(S.D. Fla. Nov. 21, 2014) (J.A. 2–37), which found that
claims 3 and 10 of U.S. Patent No. 7,031,728 (“the ’728
patent”) and claims 5 and 9 of U.S. Patent No. 7,672,681
(“the ’681 patent”) (together, the “patents-in-suit”) invoke
35 U.S.C. § 112, ¶ 6, and that the claims are indefinite
under 35 U.S.C. § 112, ¶ 2 (2006).1 Although the district
court found these claims indefinite, it did not address the
issue of invalidity because Appellee, Life360, Inc.,
(“Life360”) did not request a finding of invalidity. The
parties subsequently stipulated that these claims were
invalid for indefiniteness, see J.A. 857, and the court
entered its Final Judgment on May 12, 2015, see J.A. 1.
For the reasons articulated below, we affirm the district
court’s decision that the claims are indefinite, and accordingly
conclude that the asserted claims are invalid.



The technology


The ’728 patent describes a cellular communication
system that allows multiple cellular phone users to monitor
others’ locations and statuses via visual display of
such information on a map. ’728 patent, Abstract.
(...)
The ’681 patent is a continuation-in-part of the ’728
patent. It describes how “a designated administrator
using a personal computer (PC) or other input device can
reprogram all user and network participants’ cell phone
devices to change, modify[,] or create new virtual switch
names and new symbols for a different operating environment.”




Legal issues:


Our analysis proceeds in two steps. First, we address
whether “symbol generator” in the asserted claims is in
means-plus-function form pursuant to 35 U.S.C. § 112,
¶ 6. See Robert Bosch, LLC v. Snap–On Inc., 769 F.3d
1094, 1097 (Fed. Cir. 2014). If we find that the relevant
claim terms recite a means-plus-function limitation, we
proceed to our second inquiry and “attempt to construe
the disputed claim term by identifying the corresponding
structure, material, or acts described in the specification
to which the term will be limited.” Id. (internal quotation
marks and citation omitted); see also O.I. Corp. v. Tekmar
Co., 115 F.3d 1576, 1583 (Fed. Cir. 1997)

(...)

The district court held that “symbol generator” and
“CPU software” in claims 3 and 10 of the ’728 patent and
claims 5 and 9 of the ’681 patent invoked 35 U.S.C. § 112,
¶ 6, but were indefinite under 35 U.S.C. § 112, ¶ 2.
“Symbol generator” appears in all of the asserted claims.
Thus, if we find that claim term indefinite under 35
U.S.C. § 112, ¶ 2, we need not independently address
whether the claim term “CPU software” also renders clam
10 of the ’728 patent and claim 9 of the ’681 patent invalid
for indefiniteness.
The district court’s construction of patent claims
based on evidence intrinsic to the patent, including any
finding that the claim language invokes 35 U.S.C. § 112,
¶ 6, is reviewed de novo as a question of law. See Williamson
v. Citrix Online, LLC, 792 F.3d 1339, 1346 (Fed.
Cir. 2015) (en banc) (citation omitted). In construing
patent claims, if the district court makes underlying
findings of fact based on extrinsic evidence, such findings
are reviewed for clear error. Id. “Clear error only exists if
we are left with a definite and firm conviction that a
mistake has been committed.” Venture Indus. Corp. v.
Autoliv ASP, Inc., 457 F.3d 1322, 1331 (Fed. Cir. 2006)

(...)

“[T]he failure to use the word ‘means’ also creates a
rebuttable presumption—this time that § 112, para. 6
does not apply.” Williamson, 792 F.3d at 1348 (citation
omitted). However, “if the challenger demonstrates that
the claim term fails to recite sufficiently definite structure
or else recites function without reciting sufficient structure
for performing that function,” this presumption may
be rebutted.

(...)

Here, although the asserted claims do not include the
word “means,” the district court determined that AGIS
intended to invoke § 112, ¶ 6. See J.A. 10–11; see also
’728 patent col. 12 l. 52–col. 13 l. 13 (claim 3), col. 14 ll.
27–61 (claim 10); ’681 patent col. 12 l. 52–col. 13 l. 18
(claim 5), col. 13 l. 44–col. 14 l. 27 (claim 9). According to
the district court, “[a] plain reading of the term in context
of the relevant claim language suggests the term ‘symbol
generator’ is analogous to a ‘means for generating symbols’
because the term is simply a description of the
function performed.” J.A. 10–11 (citation omitted).




The CAFC found that 112(6) applied:



However, contrary to AGIS’s contention,
Dr. Goldberg testified that the term “symbol generator” is
a term coined for the purposes of the patents-in-suit. See
J.A. 798. The term is not used in “common parlance or by
persons of skill in the pertinent art to designate structure,”
such that it connotes sufficient structure to avoid
the application of 35 U.S.C. § 112, ¶ 6. Lighting World,
Inc. v. Birchwood Lighting, Inc., 382 F.3d 1354, 1359
(Fed. Cir. 2004), overruled on other grounds by Williamson,
792 F.3d at 1348–49.

We see no clear error in the district court’s findings
regarding Dr. Goldberg’s testimony. Dr. Goldberg’s
testimony that the terms “symbol” and “generator” are
known within the field of computer science is not dispositive
and does not require us to find that 35 U.S.C. § 112,
¶ 6 does not apply.

(...)

Irrespective of
whether the terms “symbol” and “generator” are terms of
art in computer science, the combination of the terms as
used in the context of the relevant claim language suggests
that it is simply an abstraction that describes the
function being performed (i.e., the generation of symbols).
See, e.g., ’728 patent col. 3 ll. 44–46 (“Each cellular
phone/[Personal Digital Assistant (‘PDA’)/[Global Positioning
System (‘GPS’)]” is identified on the display of
other phone systems by a symbol that is generated to
indicate its identity.” (emphasis added)); see also ’681
patent col. 7 ll. 14–17 (“Each cellular phone device is
identified on the map display of the other participant/user
cell phone devices by a display symbol that is generated on
each user cell phone device display to indicate each user’s
identity.” (emphasis added)).

(...)
Finally, the claim term “symbol generator,” by itself,
does not identify a structure by its function, cf. Personalized
Media Commc’ns v. ITC, 161 F.3d 696, 705 (Fed. Cir.
1998) (stating that the claim term “digital detector” does
not invoke § 112, ¶ 6 because “[e]ven though the term
‘detector’ does not specifically evoke a particular structure,
it does convey to one knowledgeable in the art a
variety of structures known as ‘detectors’”), nor do the
asserted claims suggest that the term “symbol generator”
connotes a definite structure, see Media Rights Techs.,
Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1372 (Fed.
Cir. 2015) (finding that the term “compliance mechanism”
invokes § 112, ¶ 6, because the asserted claims “simply
state that the ‘compliance mechanism’ can perform various
functions” (emphasis added)).

(...)

The specifications of the patents-in-suit do not disclose
an operative algorithm for the claim elements reciting
“symbol generator.” The function of generating
symbols must be performed by some component of the
patents-in-suit; however, the patents-in-suit do not describe
this component. Although the specification of the
’728 patent suggests that these symbols are generated via
“a map database and a database of geographically referenced
fixed locations . . . with a specified latitude and
longitude[,] . . . [and] [a] database with the constantly
updated GPS location,”’ 728 patent col. 3 ll. 35–41, this
only addresses the medium through which the symbols
are generated. A patentee cannot claim a means for
performing a specific function and subsequently disclose a
“general purpose computer as the structure designed to
perform that function” because this “amounts to pure
functional claiming.” Aristocrat Techs., 521 F.3d at 1333.
Accordingly, because the specifications of the patents-insuit
do not disclose sufficient structure for the “symbol
generator” function and the asserted claims include this
term, the asserted claims are indefinite under 35 U.S.C. §
112, ¶ 2.

Howdy Doody: some IP angles and "past as prelude"

History records the first Presidential inaugural to be televised as that of President Truman on January 20, 1949:


First Presidential Inauguration on Television

Lots of camera pans and animated live narration by NBC’s Ben Grauer. Includes complete Truman inaugural speech. Joint event from multiple networks (pool coverage by NBC CBS, ABC/DuMont). More than 10 million viewers on many shared home and tavern/public sets, as a viewing record for its time.




link: http://www.earlytelevision.org/pdf/Television_Recording_Origins.pdf.pdf

HOWEVER, six days EARLIER, on January 14, 1949, Howdy Doody was inaugurated as President of the Kids of America, being sworn in by Ben Grauer.

The backstory to Howdy Doody's campaign involves some interesting IP stories.

TVParty writes of the motivation for the campaign:


Howdy Doody announced his campaign on the 11th show, which aired March 4, 1948. The campaign tied in with a concern of NBC's; in those early days of television, the network wanted some way to measure the viewing audience. Roger Muir, the show's original producer-director, thought of offering a button that said "I'm for Howdy Doody" to anyone who wrote in and requested one. He ordered 10,000 buttons.



link: http://www.tvparty.com/50howdy2.html

Wikipedia describes "how" the Doody Presidential campaign allowed NBC a convenient pathway out of a problematic situation involving the rights to Doody (the character) vs. rights to Doody (the physical puppet):


By 1948, toymakers and department stores had been approached with requests for Howdy Doody dolls and similar items. Macy's department store contacted Frank Paris, the creator of the puppet, to ask about rights for a Howdy Doody doll. While Paris had created the puppet, it was Bob Smith who owned the rights to the Howdy Doody character; an argument ensued between the two men, as Paris felt he was being cheated out of any financial benefits from having made the puppet. After one such disagreement, Paris took the Howdy Doody puppet and angrily left the NBC studios with it about four hours before the show was to air live; it was not the first time Paris had taken his puppet and left, leaving the live television program with no "star".

With Paris' past disappearances, impromptu excuses regarding the whereabouts of Howdy Doody had been hastily concocted. This time, an elaborate explanation was offered—that Howdy was busy with the elections on the campaign trail. NBC hurriedly constructed a map of the United States, which allowed viewers, with the help of Smith, to learn where Howdy was on the road. The explanation continued that while on the campaign trail, Howdy decided to improve his appearance with some plastic surgery. This made it possible for the network to hire Velma Dawson to create a more handsome and appealing visual character than Paris' original, which had been called "the ugliest puppet imaginable" by Bob Smith. Since Paris did not provide the voice of the character, Howdy's voice would stay the same after his appearance changed. The puppet which is remembered as the "original" Howdy Doody replaced the actual original made by Frank Paris




link: https://en.wikipedia.org/wiki/Howdy_Doody

Howdy Doody's opponent in the campaign was a "Mr. X." Mr. X advocated the opposite of Howdy: that school should be seven days a week, that no child should ever get an ice cream sundae and that comic books should be banned. Finally, the show explained that Howdy and his brother Double Doody concocted the Mr. X plan to drum up support for Howdy. The negative campaign of Mr. X was to ensure the victory of his brother Howdy and to keep other potential candidates out of the picture. [Any relation to the negative/positive aspects of the 2016 campaign?]

**There was a Canadian Howdy Doody show which began in 1954, and had James Doohan {Star Trek's "Scotty"] as forest ranger Timber Tom. William Shatner sometimes appeared as Ranger Bob.

Illumina v. Ariosa: the CAFC discusses the phrase “relating to”

The outcome of Illumina v. Ariosa



Illumina, Inc. (“Illumina”) appeals a district court order
denying Illumina’s motion to compel arbitration.
Illumina and Ariosa Diagnostics, Inc. (“Ariosa”) entered
into a supply agreement in which the parties agreed that
certain disputes will be subject to compulsory arbitration.
The arbitration clause came into dispute when Illumina
sued Ariosa for patent infringement, and Ariosa counterclaimed
for breach of contract on grounds that, under the
terms of the supply agreement, Ariosa had a license to the
patent-in-suit. Illumina invoked the arbitration clause of
the supply agreement and moved to compel arbitration.
The district court concluded that Ariosa’s counterclaims
are not subject to arbitration. We affirm the district
court’s order denying compulsory arbitration.


The issue



Ariosa responds that its counterclaims fall within the
terms of the exclusion-from-arbitration clause. Ariosa
maintains that the presumption in favor of arbitration
only applies after a court determines that an ambiguity
exists as to whether a particular dispute is subject to
arbitration and the party favoring district court litigation
fails to rebut that presumption. Ariosa notes that the
district court has twice concluded that Ariosa’s counterclaims
“unambiguously relate to issues of patent infringement”
and thus “are outside of the scope of the
arbitration agreement.” J.A. 6. Ariosa argues that Illumina’s
claim of patent infringement is tied to the question
of whether Ariosa was granted, and continues to enjoy, an
express or implied license to the ’794 patent.



AND


We agree that Ariosa’s counterclaims are not subject
to arbitration. The pertinent language of the arbitration
provision is unambiguous and makes clear that “disputes
relating to issues of” patent scope and infringement are
not subject to mandatory arbitration. J.A. 219. Illumina
put the scope of licensed patent rights in issue by suing
Ariosa for patent infringement. The counterclaims at
issue—declaratory judgment of non-infringement, breach
of contract, and breach of certain covenants—are predicated
on the notion that the infringement allegations
cannot stand because of the licensing provisions within
the supply agreement. Endo Pharm., Inc. v. Actavis, Inc.,
746 F.3d 1371, 1374 (Fed. Cir. 2014) (noting that the
burden of proving license as a defense rests with the
alleged licensee). The scope of the licensed intellectual
property rights is germane to whether Ariosa ultimately
obtained a license to the ’794 patent for goods that it has
been exclusively purchasing from Illumina under the
supply agreement. Ariosa’s counterclaims are not about
licensing or a license defense in the abstract—they are
centered on whether Ariosa is licensed to use, and thus is
immunized from infringement of, the asserted claims of
the ’794 patent.



As to "relating to":

The Ninth Circuit and courts interpreting California
law have held that the phrase “relating to” should be
given broad meaning, in contrast to other prefatory
phrases, such as “arising hereunder.”1 In view of California
law and past interpretations of similar clauses, a
disagreement about the scope of licensed rights does not
render the clause ambiguous for purposes of invoking the
presumption in favor of arbitration. To the extent Illumina
suggests that the word “issues” narrows the import of
the exclusion-from-arbitration clause, we disagree because
the full phrase links “issues” with the modifier
“relating to”: “disputes relating to issues of.” J.A. 219.

PTAB/USPTO suffer reverse in Magnum Oil Tools

The decision of PTAB was reversed:


The Patent Trial and Appeal Board
(“Board”) instituted review and issued a final written
decision holding all challenged claims of the ’413 patent
obvious under 35 U.S.C. § 103. Subsequently, McClinton
and Magnum settled their dispute over the ’413 patent
and other patents not at issue here. Magnum now appeals
the Board’s judgment regarding the ’413 patent.
The Director of the U.S. Patent and Trademark Office
(“PTO”) intervened in the appeal pursuant to 35 U.S.C.
§ 143. For the following reasons, we reverse.



An important procedural issue was at stake:


On the merits, Magnum argues that the Board erred
in cancelling the claims of the ’413 patent because “neither
McClinton nor the [Board] ever established a prima
facie basis for the rejection.” Appellant Br. at 12. Magnum
further contends that McClinton failed to specifically
argue why a skilled artisan would have been motivated to
combine Lehr with Cockrell and Kristiansen. Instead,
Magnum contends, McClinton attempted to improperly
incorporate by reference its separate arguments concerning
its assertion of obviousness based on Alpha in view of
Cockrell and Kristiansen. Magnum asserts that Lehr
could not be the basis for a finding of obviousness because
Lehr fails to disclose key limitations recited in the ’413
patent, and a skilled artisan would not have sought to
combine Lehr with the other prior art references.
The PTO disagrees with Magnum’s proposed burdenshifting
framework. The PTO takes the view that upon
institution of an IPR, the Board necessarily finds that the
Petitioner has demonstrated a “reasonable likelihood of
success.” The PTO urges that this finding operates to
shift the burden of producing evidence of nonobviousness
to the patentee. Intervenor Br. at 32.

(...)

In making this argument,
the PTO implies that the Board’s conclusion on
obviousness in an IPR can be based on less than a preponderance
of the evidence if the patent holder does not
affirmatively disprove the grounds upon which the IPR
was initiated. Id. at 31-33.



The CAFC noted:


“In an inter partes review, the burden of persuasion is
on the petitioner to prove ‘unpatentability by a preponderance
of the evidence,’ 35 U.S.C. § 316(e), and that
burden never shifts to the patentee.” Dynamic Drinkware,
800 F.3d at 1378. Indeed, “the Supreme Court has
never imposed nor even contemplated a formal burdenshifting
framework in the patent litigation context.” In re
Cyclobenzaprine Hydrochloride Extended-Release Capsule
Patent Litig., 676 F.3d 1063, 1075 (Fed. Cir. 2012) (reversing
district court’s determination of obviousness because
“the court imposed a burden-shifting framework in a
context in which none exists”). We have noted that “a
burden-shifting framework makes sense in the prosecution
context,” where “[t]he prima facie case furnishes a
‘procedural tool of patent examination, allocating the
burdens of going forward as between examiner and applicant.’”
Id. at 1080 n. 7 (citing In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992)). As the PTO concedes, however,
that burden-shifting framework does not apply in
the adjudicatory context of an IPR. Intervenor Br. at 30
(citing In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011)
(holding the prima facie case during patent examination
“is merely a procedural device that enables an appropriate
shift of the burden of production” from the PTO to the
patent applicant)).

Next, we resolve the parties’ arguments about the related
but distinct burden of production. The PTO incorrectly
contends that “the burden of production—or the
burden of going forward with evidence, shifts between the
petitioner and the patent owner,” as soon as the Board
institutes an IPR. Intervenor Br. at 31 (discussing Dynamic
Drinkware, 800 F.3d at 1379). In Dynamic Drinkware,
we noted that, in the context of establishing
conception and reduction to practice for the purposes of
establishing a priority date, the burden of production can
shift from the patent challenger to the patentee. 800 F.3d
at 1379. This is because a patent challenger has the
burden of producing evidence to support a conclusion of
unpatentability under § 102 or § 103, but a patentee bears
the burden of establishing that its claimed invention is
entitled to an earlier priority date than an asserted prior
art reference. See id. (discussing Tech. Licensing, 545
F.3d at 1327). In such a case, the shifting of the burden of
production is warranted because the patentee affirmatively
seeks to establish a proposition not relied on by the
patent challenger and not a necessary predicate for the
unpatentability claim asserted—effectively an affirmative
defense. In the context of the present case, however, the
notion of burden-shifting is inapposite because the patentee’s
position is that the patent challenger failed to
meet its burden of proving obviousness.

Applying a
burden-shifting framework here would introduce unnecessary
confusion because the ultimate burden of persuasion
of obviousness must remain on the patent challenger
and “a fact finder must consider all evidence of obviousness
and nonobviousness before reaching a determination.”
In re Cyclobenzaprine, 676 F.3d at 1077; see also
Nike Inc., 812 F.3d 1335 (“Importantly, we have repeatedly
emphasized that an obviousness inquiry requires
examination of all four Graham factors and that an
obviousness determination can be made only after consideration
of each factor.”) (citing, inter alia, Kinetic Concepts,
Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360
(Fed. Cir. 2012))).
Where, as here, the only question presented is whether
due consideration of the four Graham factors renders a
claim or claims obvious, no burden shifts from the patent
challenger to the patentee. This is especially true where
the only issues to be considered are what the prior art
discloses, whether there would have been a motivation to
combine the prior art, and whether that combination
would render the patented claims obvious. We thus
disagree with the PTO’s position that the burden of
production shifts to the patentee upon the Board’s conclusion
in an institution decision that “there is a reasonable
likelihood that the petitioner would prevail.” See Intervenor
Br. at 32 (citing 35 U.S.C. § 314(a)). The PTO’s
proposed burden shifting framework is also directly at
odds with our precedent holding that the decision to
institute and the final written decision are “two very
different analyses,” and each applies a “qualitatively
different standard.” TriVascular, Inc. v. Samuels, 812
F.3d 1056, 1068 (Fed. Cir. 2016).



No need to request a rehearing:


We briefly dispose of the PTO’s argument that Magnum
was required to raise its concerns with the Board in
its request for rehearing prior to filing the instant appeal.
See Intervenor Br. at 36. “A party to an inter partes
review . . . who is dissatisfied with the final written
decision of the Patent Trial and Appeal Board under
section 318(a) . . . may appeal the Board’s decision only to
the United States Court of Appeals for the Federal Circuit.”
35 U.S.C. § 141(c). Nowhere does the statute
granting parties the right to appeal a final written decision
in an IPR require that the party first file a request
for rehearing before the Board, especially a rehearing of
the initial institution decision. Instead, a party who is
dissatisfied with the final written decision of the Board
can elect to directly appeal that decision. Magnum may
advance on appeal its argument concerning motivation to
combine, since it raised this argument before the Board in
the IPR. Thus, we reject the PTO’s contention that Magnum
was required to raise the present challenge to the
Board’s actions in a request for rehearing of the institution
decision before it could challenge a final Board opinion
relying on the same rationale given in the institution
decision.



AND


We agree with Magnum that the Board improperly shifted
the burden to it, as the patentee, to prove nonobviousness.
Because McClinton failed to separately meet its
burden of establishing obviousness in view of Lehr,
Cockrell, and Kristiansen, we reverse.

The Washington Post resurrects the patent quality debate

The Washington Post is hitting on a lack of quality at the USPTO:


The U.S. Patent and Trademark Office is so focused on rewarding its employees for the number of applications they review that the quality of patents they give out is in jeopardy, according to the Government Accountability Office.

(...)
“The strength of the U.S. system relies on the granting of strong patents, ones that are truly novel and non-obvious inventions, those that are true innovations and not the product of legal gamesmanship,” House Judiciary Committee Chairman Bob Goodlatte (R-Va.), who requested the audit, said in a statement.

The committee has called patent office Director Michelle Lee to testify in September. Goodlatte called the hearing “an important opportunity for the Judiciary Committee to conduct the appropriate oversight to ensure that our intellectual property laws are being implemented fairly and in line with Congressional intent.”



link: https://www.washingtonpost.com/news/powerpost/wp/2016/07/20/patent-office-tktk/

Apple fares poorly at CAFC in Unwired Planet case

Part of ND Cal's claim construction was found to be in error by the CAFC,
which determination was adverse to Apple:


We conclude that the district court erred in its construction
of “voice input.” The claims require a voice
input, not a voice channel. By its plain language, the
term “voice input” does not dictate the manner in which
voice is to be transmitted from a mobile device to a server,
and Apple does not argue otherwise. It is undisputed that
a voice input signal could be transmitted over either a
voice channel or a data channel or, as Apple itself does,
over TCP/IP. Apple does not argue that the patentee
acted as his own lexicographer and defined “voice input”
different from its plain and ordinary meaning. Thus, the
district court’s construction, adopted at Apple’s urging,
can be justified if there exists a clear and unmistakable
disclaimer in the specification or the prosecution history.
Thorner, 669 F.3d at 1367. We see no such disclaimer in
the specification.




As a procedural matter, note


To justify the district court’s construction, Apple argues
that the only embodiments disclosed in the ’446
patent use a voice channel. However, we have repeatedly
held that it is “not enough that the only embodiments, or
all of the embodiments, contain a particular limitation” to
limit claims beyond their plain meaning. Thorner, 669
F.3d at 1366; GE Lighting Sols., LLC v. AgiLight, Inc.,
750 F.3d 1304, 1309 (Fed. Cir. 2014). Apple also attempts
to justify the district court’s construction by arguing that
the claims would be invalid as anticipated if the “voice
input” were construed to have its plain meaning. We
decline to address whether the asserted claims are anticipated
because that issue is not before us and was not fully
briefed. See generally Radio Sys. Corp. v. Lalor, 709 F.3d
1124, 1132 (Fed. Cir. 2013) (“[I]nvalidity cannot be an
alternative ground for affirming a judgment of noninfringement
absent a cross-appeal.”).



As to -- U.S. PATENT NO. 6,647,260 --


We agree with Unwired that the district court erred
in granting summary judgment of non-infringement. The
district court correctly noted that “the user information”
in claim 1 refers to the same “user information” recited
earlier in the claim as part of the “receiving user information
required to establish a user account” step. However,
in granting summary judgment of non-infringement,
the district court essentially required the claimed “user
information” to be in a particular format. We do not agree
with such a reading of the term. While “user information”
refers to some information, knowledge, or data on a user,
the plain meaning of the term does not require that
information to be in any specific format or form. For
example, the English word “apple” and the Russian word
for “apple” contain the same information to the extent
that they both refer to the round fruit of a tree of the rose
family, despite their differences in form. We think a
reasonable jury could find that a hashed password in the
X-token contains the same information as in the user’s
unmodified password, albeit in a different form.
Apple argues the hashed password cannot contain the
same substantive content as the password because Unwired’s
expert admitted that it is impossible to determine
from the hashed password what the password is. It
argues the hashed password is not simply the password in
a different form, citing its expert’s report for support. J.A.
10251 (“[A] hash is designed so that the original input
into the hash function cannot be derived from the hash
value, and thus can be used for validation only.”).
We are not convinced by Apple’s argument. We do not
think the non-reversibility of a hash function—i.e., that a
hashed password cannot be decrypted into the password—
is determinative of the relevant inquiry. Whether the
hashed password in Apple’s X-token contains the same
“user information” as in a user’s password is a fact question
properly left to the jury. See Acumed LLC v. Stryker
Corp., 483 F.3d 800, 806 (Fed. Cir. 2007). The claims do
not dictate a particular form in which “user information”
exists, and we decline to adopt interchangeability or
reversibility as the essential characteristic in determining
whether multiple forms of expression have the same
underlying information

Washington Post inadvertently raises some (other) plagiarism issues

In a post titled After Melania Trump’s plagiarism, the press hunts for more stolen speeches, Callum Borchers
wrote, as to speeches by Donald Trump Jr. and Mike Pence:


But as The Fix's Philip Bump explained Wednesday, the controversy quickly died when it turned out that Buckley helped write Donald Trump Jr.'s speech. So he was really just stealing from himself.

Here at The Fix, we also scrubbed Mike Pence's Wednesday-night address and found phrases borrowed from Ronald Reagan, the Bible and Bill Clinton, of all people. But as Aaron Blake noted, these were more like hat-tips to familiar texts than attempts by Pence to pass off someone else's ideas as his own (though not all news outlets were so charitable in their assessments).



Plagiarism is copying without attribution to the originator of that which is copied. Trump Jr. gave a speech written by a speech writer without attributing the writer during the speech. Certainly a common practice. The writer in turn self-plagiarized. Both are examples of plagiarism that are accepted by many as "not a bad act." Both are plagiarism.

As to -- hat-tips to familiar texts --, Abraham Lincoln's "House Divided" speech is right out of the Bible. Most in that 1858 audience probably knew this. One does not need to attribute an author that is already known , at least in speeches.
Joe Biden's Syracuse Law plagiarism shows that this rule does not always hold. Biden's fellow student (and professor) knew "where" the copied text came from. But on a paper, for a grade, copying without attribution is problematic, even when the readers know your source. That amounts to trying to take credit for the work of others. Not good on an assignment, but all right when using a speechwriter?

US '627 [Method and apparatus for creating timewise display of widely variable naturalistic scenery on an amusement device ] may get some action

The first claim of US Patent 9,317,627 to Johan Gielis states:


A method for creating timewise display of widely variable naturalistic scenery, including simulated plants, simulated other organisms or simulated landscapes, on an amusement device with minimized data storage and processing requirements, the method comprising: creating with computer hardware a first shape that corresponds to at least a portion of a simulated natural form, including at least a portion of a simulated plant, a simulated other organism or a simulated landscape, based on a first set of parameter values in data storage input by said computer hardware into a representation of a formula that establishes shape position with respect to angle or orientation in a rotational coordinate system based on a vast number of possible parameter sets as: shape position corresponds to a fraction in which the denominator of said fraction has a variable root parameter (n.sub.1) set as the root of an expression including the absolute values of two terms, with the absolute value of a first term of said two terms being to an exponent based on a variable first exponent parameter (n.sub.2) and the absolute value of a second term of said two terms being to an exponent based on a variable second exponent parameter (n.sub.3), wherein said first term includes an axis sub term, having a first axis parameter (1/a or A), that is multiplied by a cosine sub term including the cosine of a value including a first rotational symmetry parameter (m.sub.1) times an angle or orientation, and wherein said second term includes an axis sub term, having a second axis parameter (1/b or B), that is multiplied by a sine sub term including the sine of a value including a second rotational symmetry parameter (m.sub.2) times an angle or orientation; wherein (i) said first and second axis parameters, said root parameter (n.sub.1), said first and second exponent parameters (n.sub.2, n.sub.3) and said first and second rotational symmetry parameters (m.sub.1, m.sub.2) are finite real numbers, (ii) said root parameter (n.sub.1) and said first and second axis parameters are not equal to zero, and (iii) said first and second axis parameters, said root parameter (n.sub.1), said first and second exponent parameters (n.sub.2, n.sub.3) and said first and second rotational symmetry parameters (m.sub.1, m.sub.2) are not equal to 1; generating the naturalistic scenery by displaying on a monitor of the amusement device a naturalistic scene based on said first shape; creating with said computer hardware additional shapes including said computer hardware inputting modified parameter values into said representation of said formula; generating a timewise display of naturalistic scenery by displaying with said monitor additional naturalistic scenes based on said additional shapes, said additional naturalistic scenes being displayed on said monitor separated timewise from said naturalistic scene for said timewise display of naturalistic scenery; whereby allowing timewise display of widely variable naturalistic scenery, including simulated organisms, simulated plants or simulated landscapes, with minimized data storage and processing requirements due to minimized storage requirements for said parameter values and processing with said representation of said formula.



The priority chain is


This application is a continuation of U.S. application Ser. No. 12/582,528, filed on Oct. 20, 2009, entitled Method and Apparatus for Synthesizing and Analyzing Patterns Utilizing Novel "Super-Formula" Operator of J. Gielis, which is a divisional of U.S. application Ser. No. 09/566,986, filed on May 9, 2000, entitled Method and Apparatus for Synthesizing and Analyzing Patterns Utilizing Novel "Super-Formula" Operator of J Gielis, which claims priority to U.S. Provisional Application Ser. No. 60/133,279, filed on May 10, 1999, the entire disclosures of which applications are all incorporated herein by reference as though recited herein in fUll.




Ars Technica notes:


Despite the noise being made by Genicap, there's some question as to whether the company's patent actually applies to No Man's Sky. The European Patent Convention says directly that "discoveries, scientific theories, and mathematical methods" are not directly patentable, and US patent law also excepts "disembodied mathematical algorithms and formula" from patentability.

But that doesn't mean Genicap's patent is invalid. "Copyrighting a mathematical formula is actually a difficult feat," Law of the Game blogger and attorney Mark Methenitis tells Ars. "You can, however, patent the practical application of a mathematical formula... So while you can't make the formula itself a claim, you can make using the formula to achieve specific outcomes 'claims' in the patent. Looking over the patent here, it does seem like that's [what Genicap did]."

In other words, Hello Games can't get in trouble for simply using the basic superformula. But it could run into legal trouble for using the formula in a specific way that's outlined in the patent. And while Genicap's patent calls out the formula's potential use in "graphics programs (e.g., 2D, 3D, etc.); CAD software; finite element analysis programs; wave generation programs; or other software," it doesn't specifically mention game design (procedurally generated or otherwise).



link: http://arstechnica.com/gaming/2016/07/no-mans-sky-faces-potential-patent-fight-over-use-of-superformula/

Separately, as to IPBiz

CAFC negates ND California on supplemental jurisdiction issue in AngioScore case

The summary of "what happened"


AngioScore, Inc. sued the defendant-appellants (Tri-
Reme Medical, LLC, Quattro Vascular PTE Ltd., QT
Vascular Ltd., and Eitan Konstantino) for patent infringement,
breach of fiduciary duty, aiding and abetting,
and unfair competition. After separate trials on the
patent and state-law claims, the district court entered
final judgment for Defendants on the patent claim, for
AngioScore on the state-law claims, and denied Corporate
Defendants’ (TriReme Medical, LLC, Quattro Vascular
PTE Ltd., and QT Vascular Ltd.) request for attorneys’
fees under 35 U.S.C. § 285. Because we find that the
district court improperly exercised supplemental jurisdiction
over the state-law claims but did not err in denying
attorneys’ fees, we reverse-in-part, affirm-in-part, vacatein-
part, and remand with instructions to dismiss the
state-law claims for lack of jurisdiction.




Of supplemental jurisdiction:


The threshold question here is whether the district
court properly exercised jurisdiction over the state-law
claims. We review de novo a district court’s exercise of
supplemental jurisdiction over state-law claims under 28
U.S.C. § 1367(a). Voda v. Cordis Corp., 476 F.3d 887, 892
(Fed. Cir. 2007).
This court follows the “‘fundamental precept that federal
courts are courts of limited jurisdiction,’ empowered
to act only within the bounds of Article III of the United
States Constitution.” Highway Equip. Co. v. FECO, Ltd.,
469 F.3d 1027, 1032 (Fed. Cir. 2006) (quoting Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374
(1978)). If diversity jurisdiction is lacking and the case
involves state-law claims that are not independently
subject to federal jurisdiction, a district court may exercise
supplemental jurisdiction over those state-law claims
only if they “are so related to claims in the action within
such original jurisdiction that they form part of the same
case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a); see also Highway
Equip. Co., 469 F.3d at 1038. “For this relatedness requirement
to be satisfied, ‘[t]he state and federal claims
must derive from a common nucleus of operative fact’
such that they would ordinarily be expected to be tried in
one proceeding.” Highway Equip. Co., 469 F.3d at 1038
(quoting United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 725 (1966)).
An “operative fact” is one “that constitutes the transaction
or event on which a claim or defense is based.”
Wisey’s #1 LLC v. Nimellis Pizzeria LLC, 952 F. Supp. 2d
184, 190 (D.D.C. 2013) (quoting BLACK’S LAW DICTIONARY
670 (9th ed. 2009)). Generally, claims arise out of a
common nucleus of operative fact when they “involve the
same witnesses, presentation of the same evidence, and
determination of the same, or very similar, facts.” Palmer
v. Hosp. Auth. of Randolph Cty., 22 F.3d 1559, 1563–64
(11th Cir. 1994); see also Lyndonville Sav. Bank & Trust
Co. v. Lussier, 211 F.3d 697, 704 (2d Cir. 2000) (a sufficient
relationship will be found if “the facts underlying
the federal and state claims substantially overlap[] . . . or
where presentation of the federal claim necessarily
b[rings] the facts underlying the state claim before the
court”). However, state-law claims that “only ‘relate
generally’ to federal claims through a broader dispute and
do not share any operative facts are insufficient for supplemental
jurisdiction.” Wisey’s #1 LLC, 952 F. Supp. 2d
at 190 (quoting Chelsea Condo. Unit Owners Ass’n v. 1815
A St., Condo. Grp., LLC, 468 F. Supp. 2d 136, 141 (D.D.C.
2007)).

Here, no common nucleus of operative fact exists.




The outcome:


For these reasons, we find that the district court improperly
exercised supplemental jurisdiction over the
state-law claims, but did not err in denying attorneys’
fees. Therefore, we reverse-in-part, affirm-in-part, vacate-
in-part, and remand with instructions to dismiss the
state-law claims for lack of subject matter jurisdiction.

The New York Times on the Melania Trump matter

In a post Melania Trump, Plagiarism, and How Much Does It Matter? , the New York Times quoted the Washingtonian:


The Washingtonian wrote: “According to Turnitin, a plagiarism-checking website that examines 200,000 papers a day, the likelihood that a 16-word match is ‘just a coincidence’ is less than 1 in a trillion. Melania Trump’s longest match? 23 words.”



From the Washingtonian:


To help us get a handle on how similar the speeches were, Washingtonian ran excerpts through a side-by-side plagiarism checker at Small SEO Tools.

(...)

Here’s an even more shocking statistic: According to Turnitin, a plagiarism-checking website that examines 200,000 papers day, the “likelihood that a 16-word match is ‘just a coincidence’ is less than 1 in a trillion.” Melania Trump’s longest match? 23 words.



link: https://www.washingtonian.com/2016/07/19/we-ran-melania-trumps-speech-through-a-plagiarism-checker/

The link FROM the Washingtonian To "1 in a trillion" is to Top 15 Misconceptions About Turnitin , which includes the text
Misconception 11: Matched text is likely to be completely coincidental or common knowledge.

Reality: The likelihood that a 16-word match is "just a coincidence" is less than 1 in a trillion. Turnitin also includes the ability to exclude "small matches" if the instructor wants to exclude common phrases.



See also

https://www.theguardian.com/commentisfree/2016/jul/19/plagiarism-signs-education-melania-trump

https://www.insidehighered.com/blogs/mama-phd/plagiarism-rubric

https://www.insidehighered.com/views/2016/07/21/melania-trumps-speech-raises-larger-issues-plagiarism-essay

Diana Rigg Birthday on July 20

Apart from lunar landing day, July 20 is Diana Rigg's birthday. In 2014, she was quoted:


"I think women of my age are still attractive." She removes her glasses and faces me down with brown eyes that have turned strong men – and, indeed, women – to jelly. "Men of my age aren't." Why? "They've got their cojones halfway to their knees," she says, giggling. "They have the same descent as tits."



link: https://www.theguardian.com/tv-and-radio/2014/mar/09/diana-rigg-game-of-thrones-getting-older

D. Delaware decision on jurisdiction vacated by CAFC in Polar Electro

The outcome:


Polar Electro Oy (“Polar”) appeals from the decision of
the United States District Court for the District of Delaware
granting Suunto Oy’s (“Suunto”) motion to dismiss
for lack of personal jurisdiction. See Polar Electro Oy v.
Suunto Oy, No. 11-1100, 2015 WL 2248439 (D. Del. May
12, 2015). Because the district court erred in determining
that Suunto lacked sufficient minimum contacts with
Delaware to support specific jurisdiction, we vacate and
remand.



Yes, Polar and Suunto are BOTH Finnish companies.

Note a footnote


The parties designated certain information in
their merits briefs as confidential, but later informed the
court that “the information in the merits briefs may be
discussed at argument and included in any opinion.”
Polar Electro Oy v. Amer Sports Winter & Outdoor, No.
15-1930, ECF No. 50 (Fed. Cir. Apr. 29, 2016). Other
materials designated as confidential in the joint appendix
remain sealed. Id.



As to the law


Determining whether personal jurisdiction over an
out-of-state defendant is proper entails a two-part inquiry.
Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344,
1349 (Fed. Cir. 2003). First, a district court analyzes and
applies the long arm statute of the state in which it sits to
determine whether personal jurisdiction is proper under
the statute. Id. Second, the court determines whether
exercising jurisdiction over the defendant in the forum
state comports with the Due Process Clause of the U.S.
Constitution. Id. Here, because the district court’s dismissal
of Suunto is premised on its determination that
due process considerations prevented its exercise of
jurisdiction, we consider the due process inquiry first.



Yes, International Shoe is cited:



Due process requires that the defendant have sufficient
“minimum contacts” with the forum state, “such that
the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (internal quotation
marks and citation omitted). Personal jurisdiction
has two forms: specific and general. AFTG-TG, LLC v.
Nuvoton Tech. Corp., 689 F.3d 1358, 1360 (Fed. Cir.
2012). General jurisdiction is not at issue here.



AND


Because McIntyre did not produce a majority opinion,
we have held that we must follow its narrowest holding,
which is what “can be distilled from Justice Breyer’s
concurrence—that the law remains the same after McIntyre.”
AFTG-TG, 689 F.3d at 1363 (citing Marks v. United
States, 430 U.S. 188, 193 (1977)). Thus, we must follow
our existing precedent. In Beverly Hills Fan Co. v. Royal
Sovereign Corp., 21 F.3d 1558, 1566 (Fed. Cir. 1994), this
court declined to decide which of Justice O’Connor’s and
Justice Brennan’s tests should be adopted because the
outcome of that appeal would be the same under either
test. Subsequent panels have followed that approach, as
the resolution of the cases thus far has not required us to
“take a side on the Asahi divide.” AFTG-TG, 689 F.3d at
1364; see also Celgard, 792 F.3d at 1382; Commissariat a
L’Energie Atomique v. Chi Mei Optoelectronics Corp., 395
F.3d 1315, 1322 & n.7 (Fed. Cir. 2005); Viam Corp. v.
Iowa Export-Import Trading Co., 84 F.3d 424, 428 (Fed.
Cir. 1996).



Suunto loses



We agree with Polar that Suunto has sufficient contacts
with Delaware to sustain specific jurisdiction. The
record shows that Suunto’s actions satisfy the more
stringent tests articulated by Justice O’Connor in Asahi
and by Justice Kennedy in McIntyre, as well as the more
flexible test articulated by Justice Brennan. Specifically,
Suunto purposefully shipped at least ninety-four accused
products to Delaware retailers, fully expecting that its
products would then be sold in Delaware as a result of its
activities. It thus can be said that Suunto’s actions are
purposefully directed to Delaware, indicating an intent
and purpose to serve not only the U.S. market generally,
but also the Delaware market specifically.



Note:


We agree with Polar that the district court correctly
applied the dual jurisdiction theory in this case. It may
seem counterintuitive that the dual jurisdiction theory
does not demand the full satisfaction of any individual
subsection of the Delaware long arm statute. But to date,
no Delaware state court has rejected that theory. Indeed,
the Delaware Supreme Court has had opportunities to
reject the theory, but has declined to do so. See Graphics
Props. Holdings, Inc. v. ASUS Comput. Int’l, 70 F. Supp.
3d 654, 661 (D. Del. 2014) (collecting cases). The district
courts in Delaware have applied the dual jurisdiction
theory in several patent cases. See, e.g., Robert Bosch
LLC v. Alberee Prods., Inc., 70 F. Supp. 3d 665, 672–76
(D. Del. 2014); Graphics Props., 70 F. Supp. 3d at 659–62;
Intellectual Ventures I LLC, v. Ricoh Co., 67 F. Supp. 3d
656, 660–61 (D. Del. 2014); Belden Techs., Inc. v. LS
Corp., 829 F. Supp. 2d 260, 267–68 (D. Del. 2010); Power
Integrations, 547 F. Supp. 2d at 370–74. But see Round
Rock Research LLC v. ASUSTeK Comput. Inc., 967 F.
Supp. 2d 969, 975–78 (D. Del. 2013). Although the Boone
decision is not binding on this court or the district court,
we conclude that the district court did not err in applying
the dual jurisdiction theory in this case.




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1930.Opinion.7-18-2016.1.PDF

WBIP prevails over Kohler at the CAFC

Kohler lost at the CAFC:


We affirm the court’s denial of judgment as a
matter of law on all issues raised by Kohler and its willful
infringement determination, vacate the court’s denial of
WBIP’s motion for a permanent injunction, and remand
for further consideration

(...)

For the foregoing reasons, we affirm the district
court’s denial of judgment as a matter of law that the
asserted claims would have been obvious and lack sufficient
written description and the willful infringement
determination. We vacate the district court’s denial of
WBIP’s motion for a permanent injunction, and remand
for further consideration.


The technology


Westerbeke Corporation1 and Kohler are competitors
who manufacture and sell marine generators (“gen-sets”)
that are used on houseboats to create electrical power for
appliances such as refrigerators and air conditioners.
Gen-sets have two main parts, an engine and a generator.
The exhaust from a typical engine in a gen-set, like any
gasoline-powered engine, contains carbon monoxide,
which can cause asphyxiation at certain concentrations.
Carbon monoxide is particularly dangerous on boats,
where the living quarters are confined in close proximity
to the engine.




link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1038.Opinion.7-15-2016.1.PDF

CBS Sunday Morning on July 17, 2016

Jane Pauley, not Charles Osgood, hosted Sunday Morning on July 17, 2016.

One story of IP interest was the cover story of Mo Rocca on Cleveland, which mentioned that Cleveland was the "silicon valley" of its time, and brought up the term "disruptive technology." The car works of Alexander Winton were mentioned, as was the
distinctive logo of the Winton automobile, which had a forward slanting "O". Charles Brush and his power generating windmill were mentioned. Mo Rocca emphasized that the rich of that Cleveland were self-made men, who invented a product that made them rich.
During the story, the issue of "why" Cleveland did not become "motor city" arose, but elsewhere one had the line "At least we aren't Detroit." And yes, "mistake on the lake" came up.
CBS did not mention Winton's role in patent battles involving The Electric Vehicle Company and Winton's later membership in ALAM, which sued Henry Ford over the Selden patent.


A trademark matter came up in John Blackstone's piece on the band Chicago, once Chicago Transit Authority. It was mentioned that the logo Chicago clearly only meant the band, not the city. Also, the idea that the switch from "Chicago Transit Authority" was necessitated by a complaint was repudiated.

Of interest to IPBiz was a story by Tracy Smith titled How parrots help veterans with PTSD


At Serenity Park, Zoe [an African Grey parrot] and three dozen other birds are part of an animal therapy program that pairs them with vets suffering from PTSD. The veterans say that, somehow, the parrots can connect with them in a way that no human therapist ever could.

(...)

Serenity Place was the idea of psychologist Lorin Lindner, who used to take veterans she was working with to another parrot sanctuary she ran north of L.A., and was surprised at how well parrots and vets got along.

"All of a sudden I'd see this transformation come over them," Lindner said. "They'd be holding the birds in their arms and calling them sweet terms, and I hadn't seen that in the group therapy I'd been doing with them."

So ten years ago, Lindner got the V.A. Medical Center to give her enough land to set up a few bird cages, and with a budget based solely on donations Serenity Park was born.

(...)

Harvard University researcher Irene Pepperberg says few people are prepared for a parrot in their lives.

"Imagine taking a five-year-old child, putting it in a playpen with a few toys and a few snacks for ten hours a day," she said. "Doesn't work that way."

What's more, a parrot can be a lifetime commitment.

"Because they live forever -- I won't say forever, but 40, 50 years is very common," said Pepperberg.

As a result, parrots can outlive their original owners. And those that do are often abused or discarded.

Most of the Serenity Park birds went through hell at some point in their lives, just like the people who now care for them.

"There is an unspoken communication between one sentient being that has suffered trauma and another," said Serenity Park operations manager Matt Simmons. "And you feel that."


CBS did not mention Pepperberg's parrot, Alex, who lived only from 1976 to September 6, 2007.
link: https://en.wikipedia.org/wiki/Alex_(parrot)
CBS did not mention that Pepperberg's Ph.D. is in chemistry.


The Smith piece had a photo of Bacardi, a blue and gold macaw and a clip with an umbrella cockatoo, Phoebe.


There was mention of the sale of the Longaberger Basket Building.
http://www.kansascity.com/news/nation-world/national/article89339292.html
link: http://www.bbc.com/news/world-us-canada-36797849


The "moment of nature" was Cuyahoga Valley National Park.
link: http://www.cbsnews.com/videos/nature-cuyahoga-valley-national-park/

Orphan drug status for Crestor?

Note the article in the New York Times by Andrew Pollack about Crestor titled
AstraZeneca Pushes to Protect Crestor From Generic Competition

Note separately the article by Murphy: Unintended Effects of Orphan Product Designation for Rare Neurological Diseases, especially Table 2: Blockbuster drugs that have obtained orphan drug designation

CAFC in Skyhawke continues the ordinary rule counseling against prevailing party appeals

The CAFC observed:


SkyHawke points us
to no authority to suggest that Congress intended the use
of “dissatisfied with” in conjunction with “final decision”
to broaden the appeal rights from Board decisions to
include those of prevailing parties who are merely dissatisfied
with the Board’s reasoning.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1325.Motion_Panel_Order.7-13-2016.1.PDF

CAFC reminds 101 victim: “relying on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.”

From the Shortridge case:

To determine whether a patent claims ineligible subject
matter, we apply the now-familiar two-step test
introduced in Mayo, id. at 1296–97, and further explained
in Alice, 134 S. Ct. at 2355. First, we determine whether
the claims at issue are directed to a patent-ineligible
concept such as an abstract idea. Alice, 134 S. Ct. at
2355. Second, we look at the claims for “something more”
by “examin[ing] the elements of the claim to determine
whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible
application.” Id. at 2354, 2357 (quoting Mayo, 132 S. Ct.
at 1294, 1298). This inventive concept must do more than
simply recite “well-understood, routine, conventional
activity.” Mayo, 132 S. Ct. at 1298.

(...)

What Mr. Shortridge relies on most heavily as the
step-two inventive concept is the generation of CPRs “in
conjunction with and simultaneous with” core payroll
processing. Appellant Br. 11–13 (quoting ’933 patent
col. 18 ll. 62–63, col. 20 ll. 8–9, col. 22 l. 4). We disagree
that this feature imparts patent eligibility. As disclosed
in the specification and recited in the plain claim language,
the ’933 patent claims generating CPRs in conjunction
with and simultaneous with core payroll
processing simply by applying computer elements such as
relational databases. The district court found, and
Mr. Shortridge does not argue to the contrary, that the
computer components contemplated by the ’933 patent
were conventional and known to the industry at the time
of the patent. Dist. Ct. Op., 2015 WL 1739256, at *12.
While it may be true that, as Mr. Shortridge argues, a
human could not easily process core payroll while simultaneously
generating CPRs, “relying on a computer to
perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.”

En banc CAFC in MedCo v. Hospira: a contract manufacturer’s sale to the inventor of manufacturing services where neither title to the embodiments nor the right to market the same passes to the supplier does not constitute an invalidating sale under § 102(b)

The case is complex, with both parties appealing certain issues:


MedCo appealed two of the district court’s claim construction
rulings and the district court’s non-infringement
ruling. Hospira cross-appealed the district court’s decisions
regarding the on-sale bar, obviousness, and indefiniteness.
Because the district court found the invention
was “ready for patenting,” Hospira focused only on the
first prong of Pfaff on appeal: whether the invention was
the subject of a commercial offer for sale. Among other
things, Hospira criticized the district court’s conclusion
that the batches of Angiomax were for experimental
purposes, pointing out that MedCo had not relied upon
the experimental use exception to § 102(b) and that
Hospira, accordingly, had no incentive or opportunity to
address the issue.



This en banc CAFC decision is about Hospira's appeal of the
district court's ruling that the on-sale bar was NOT triggered.
The CAFC affirmed that the on-sale bar was not triggered.

The CAFC began the opinion:


Today, we consider the circumstances under which a
product produced pursuant to the claims of a product-byprocess
patent is “on sale” under 35 U.S.C. § 102(b). This
is important because, if “on sale” more than one year
before the filing of an application for a patent on the
governing claims, any issued patent is invalid and the
right to exclude others from making, using, and selling
the resulting product is lost. We conclude that, to be “on
sale” under § 102(b), a product must be the subject of a
commercial sale or offer for sale, and that a commercial
sale is one that bears the general hallmarks of a sale
pursuant to Section 2-106 of the Uniform Commercial
Code. We conclude, moreover, that no such invalidating
commercial sale occurred in this case. We, therefore,
affirm the district court’s judgment ...



But there was a remand on other issues:


We hold today that a contract manufacturer’s sale to
the inventor of manufacturing services where neither title
to the embodiments nor the right to market the same
passes to the supplier does not constitute an invalidating
sale under § 102(b). We, therefore, affirm the district
court’s holding that the transactions between Ben Venue
and MedCo did not trigger the on-sale bar. Because the
original panel held that the ’727 patent and the ’343
patent were invalid under the on-sale bar as a result of
MedCo’s transactions with Ben Venue, it did not reach
the other issues raised on appeal. Specifically, the original
panel did not reach the issue of whether the invention
was ready for patenting at the time of the 2006 and 2007
transactions, or whether the Distribution Agreement
between MedCo and ICS triggered the on-sale bar. It also
did not reach either MedCo’s appeal of the district court’s
claim construction and non-infringement rulings or Hos-
pira’s cross-appeal of the district court’s obviousness and
indefiniteness rulings. We, therefore, remand the appeal
to the original panel for further proceedings consistent
with this opinion.



Of this en banc case:


Unlike Pfaff itself, the focus of this en banc appeal is
on the first prong of the Pfaff test: whether the invention
was the subject of a commercial sale or offer for sale. We
have held that “the question of whether an invention is
the subject of a commercial offer for sale is a matter of
Federal Circuit law, to be analyzed under the law of
contracts as generally understood.” Group One, Ltd. v.
Hallmark Cards, Inc., 254 F.3d 1041, 1047 (Fed. Cir.
2001). We also have held that, to be true to Pfaff when
assessing prong one of § 102(b), we must focus on those
activities that would be understood to be commercial sales
and offers for sale “in the commercial community.” Id.
We have also indicated that, “[a]s a general proposition,
we will look to the Uniform Commercial Code (‘UCC’) to
define whether . . . a communication or series of communications
rises to the level of a commercial offer for sale.”
Id. And we have made clear that, post-Pfaff, “[t]he transaction
at issue must be a ‘sale’ in a commercial law
sense,” and that “[a] sale is a contract between parties to
give and to pass rights of property for consideration which
the buyer pays or promises to pay the seller for the thing
bought or sold.” Trading Techs., 595 F.3d at 1361 (quotation
marks omitted).

Applying § 102(b) in light of Pfaff, we conclude that
the transactions between MedCo and Ben Venue in 2006
and 2007 did not constitute commercial sales of the patented
product. We, thus, affirm the district court’s
conclusion that those transactions were not invalidating
under § 102(b).



Why Hospira lost on this issue:


In the discussion that follows, we first
clarify that the mere sale of manufacturing services by a
contract manufacturer to an inventor to create embodiments
of a patented product for the inventor does not
constitute a “commercial sale” of the invention. We then
address the issue of “stockpiling” by an inventor and
clarify that “stockpiling” by the purchaser of manufacturing
services is not improper commercialization under
§ 102(b). We explain that commercial benefit—even to
both parties in a transaction—is not enough to trigger the
on-sale bar of § 102(b); the transaction must be one in
which the product is “on sale” in the sense that it is
“commercially marketed.” There are, broadly speaking,
three reasons for our judgment in this case: (1) only
manufacturing services were sold to the inventor—the
invention was not; (2) the inventor maintained control of
the invention, as shown by the retention of title to the
embodiments and the absence of any authorization to Ben
Venue to sell the product to others; and (3) “stockpiling,”
standing alone, does not trigger the on-sale bar.



The text --(1) only
manufacturing services were sold to the inventor—the
invention was not; -- might sound peculiar because one is usually
worried about sales made by the inventor to others.

But the CAFC noted:


Section 1 of the Patent Act of
1793 required that an invention for which a patent was
sought be “not known or used before the application.” Act
of Feb. 21, 1793, ch. 11, § 1, 1 Stat. 318. The Supreme
Court interpreted this statute in Pennock v. Dialogue, 27
U.S. (2 Pet.) 1 (1829), holding that an inventor loses his
right to a patent “if he suffers the thing invented to go
into public use, or to be publicly sold for use, before he
makes application for a patent. His voluntary act or
acquiescence in the public sale and use is an abandonment
of his right.” Id. at 23-24 (emphases added). The
Court noted “that under the common law of England,
letters patent were unavailable for the protection of
articles in public commerce at the time of the application,
and that this same doctrine was immediately embodied in
the first patent laws passed in this country.” Bonito
Boats v. Thunder Craft Boats, 489 U.S. 141, 149 (1989)
(describing Pennock, 27 U.S. at 20-22); see also Shaw v.
Cooper, 32 U.S. 292, 320-21 (1833) (third-party sale
invalidating where statute required invention not be
“known or used before the [patent] application”).




***And remember



A merits panel of this court agreed with Hospira and
reversed the district court’s ruling regarding the applicability
of the on-sale bar. Meds. Co. v. Hospira, Inc., 791
F.3d 1368 (Fed. Cir. 2015). The panel acknowledged that
“Ben Venue invoiced the sale as manufacturing services
and title to the pharmaceutical batches did not change
hands,” but disagreed with the district court’s conclusion
that Ben Venue’s sale of services did not constitute a
commercial sale of the claimed product. The panel explained
that, “where the evidence clearly demonstrated
that the inventor commercially exploited the invention
before the critical date, even if the inventor did not transfer
title to the commercial embodiment of the invention,”
the on-sale bar applies. Id. at 1370-71 (emphasis added).

The panel found no distinction between the offer to
sell products prepared by a patented method in D.L. Auld,
714 F.2d at 1147, and the commercial sale of services that
result in a patented product-by-process. Id. at 1371. The
panel reasoned that, because MedCo paid Ben Venue for
services that resulted in the patented product, the transactions
were commercial sales. Id. According to the
panel, to hold otherwise would conflict with the “no ‘supplier’
exception” under Special Devices, Inc. v. OEA, Inc.,
270 F.3d 1353, 1355 (Fed. Cir. 2001). The panel also
found that the transactions between MedCo and Ben
Venue were “not the type of ‘secret, personal use’” described
in Trading Technologies International, Inc. v.
eSpeed, Inc., 595 F.3d 1340, 1362 (Fed. Cir. 2010), but
rather were “batches prepared for commercial exploitation.”
Meds. Co., 791 F.3d at 1371.


Metallizing Engineering is cited:


Hospira argues that, by manufacturing embodiments
of the patented product for MedCo, Ben Venue put the
invention “on sale.” But we have never espoused the
notion that, where the patent is to a product, the performance
of the unclaimed process of creating the product,
without an accompanying “commercial sale” of the product
itself, triggers the on-sale bar. (...)

In Metallizing Engineering Co. v.
Kenyon Bearing & Auto Parts Co., the patentee used a
secret process to recondition worn metal parts for its
customers, for compensation, before the critical date. 153
F.2d 516, 517-18 (2d Cir. 1946).



The on-sale bar is different as between products and processes:


Similarly, in In re
Kollar, we vacated a decision that “fail[ed] to recognize
the distinction between a claim to a product, device, or
apparatus, all of which are tangible items, and a claim to
a process, which consists of a series of acts or steps” in
applying the on-sale bar. 286 F.3d at 1332. We stated
that, while “[a] tangible item is on sale when . . . the
transaction ‘rises to the level of a commercial offer for
sale’ under the Uniform Commercial Code,” “[a] process,
however, is a different kind of invention . . . [and] thus [is]
not sold in the same sense as is a tangible item.” Id.



link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1469.Opinion.7-7-2016.1.PDF

Plagiarism leads to retraction of 2002 paper from Springer’s Applied Microbiology and Biotechnology

An article ‘The Nitrile — degrading enzymes: Current Status and future prospects’ by Prof A Banerjee, Prof Rohit Sharma and Prof U C Banerjee has been retracted from Applied Microbiology and Biotechnology because portions of other authors’ writings on the same topic in other publications, without sufficient attribution to these earlier works being given.

Link: http://indianexpress.com/article/india/india-news-india/thress-scientists-caught-in-plagiarism-row-top-publisher-retracts-article-after-14-years-2905907/

Proterra charging system for electric buses: look ma, no patents!

The Proterra patent strategy evokes that of Tesla:


As neat as the [Proterra] charging system is, the fact that it won't be a proprietary walled garden is even neater. Says Popple:

We're growing very quickly—we have a backlog that extends to the end of next year, we're tripling shipments in 2017, and yet we still need to work out how to make this industry grow even faster. We discovered that competing electric bus offerings out there lack this kind of fast charging equipment, which for larger fleets is a core tool you need in the kit to do a large-scale EV deployment. So by offering these patents to any other industry participants we think we can get this market to go even faster.

The decision to open up the core patents began with one of Proterra's early customers asking if it could buy electric buses from another company and still use Proterra's infrastructure (bus companies don't like being tied into a single vendor, apparently). "At a Board of Directors level there's going to be concern if we're locked into your product the way an iPhone user is locked into the Apple charging cord," said Popple. "You can do that kind of thing with smartphones, but you really shouldn't do it with an industrial market because it tends to slow down the adoption of new technology."

That first customer was given a transferable license for the charging IP, but rather than repeat that process (which took several months and involved plenty of lawyers) again and again, Proterra decided to bundle the relevant patents together and offer them to anyone under an open license. "It helps heavy-duty urban electrification to move faster, but allows us to stick to our core business," Popple told us. "For a young technology company, it's really important we just do one thing well."




link: http://arstechnica.com/cars/2016/07/proterra-develops-fast-charging-for-buses-opens-up-the-patents/

CBS Sunday Morning on July 10, 2016 goofs on the Tesla story

The CBS Sunday Morning Almanac feature was directed to the birthday of Nikola Tesla on July 10, 1856. The Almanac text included:


[Tesla] went to work for Thomas Edison, but soon split with him over Edison's support for Direct Current (DC) electric power.

Tesla believed that Alternating Current (AC) was more efficient, and switched sides to work with Edison's arch-rival, George Westinghouse.

Tesla also made breakthroughs in radio ... building a landmark 187-foot-tall radio transmitter on New York's Long Island.



link: http://www.cbsnews.com/news/almanac-nikola-tesla/

IPBiz notes that, contrary to what CBS Sunday Morning reported, Tesla split with Edison over non-payment of a reward for improvements in Edison's direct current generator. As wikipedia notes: According to Tesla, Edison remarked, "There's fifty thousand dollars in it for you—if you can do it. (...) After months of work, Tesla fulfilled the task and inquired about payment. Edison, saying that he was only joking, replied, "Tesla, you don't understand our American humor." Instead, Edison offered a US$10-a-week raise over Tesla's US$18 per week salary; Tesla refused the offer and immediately resigned.

Tesla worked with Alfred S. Brown, a Western Union superintendent, and New York attorney Charles F. Peck to form Tesla Electric Company in April 1887. In 1887, Tesla developed an induction motor, which was submitted for patenting in May 1888. [US Patent 555,190 issued in 1896; filed on May 15, 1888] In July 1888, Brown and Peck negotiated a licensing deal with George Westinghouse. In 1897, Westinghouse purchased the Tesla AC patents for a lump sum.

Of the 187 foot tower at Wardenclyffe. Tesla intended the tower both for radio AND for power transmission. Wikipedia notes:
His primary goal in these experiments was to develop a new wireless power transmission system.
link: https://en.wikipedia.org/wiki/Wardenclyffe_Tower 190


The six claims of US '190



1. In an electromagnetic motor, the combination of independent energizing-circuits, one adapted to be connected with a source of alternating current, the other arranged in inductive relation to the said first circuit whereby the motor will be operated by the resultant action of the two circuits, as set forth.
2. The combination in an electromagnetic motor, with an alternating coil or conductor and a closed-circuit conductor in inductive relation thereto, of an armature mounted so as to be within the field produced by the coil and closed conductor, as set forth.
3. The combination in an electromagnetic motor, with energizing-coils adapted to be connected with the generator of induced coils and independent energizing-coils in circuit therewith and arranged to produce a shifting movement of the points of maximum magnetic effect of the motor, as set forth.
4. The combination in an electromagnetic motor of a series of independent energizing-coils or sets of coils and induced coils wound on all the energizing-coils or sets of coils but the last of the series, the first energizing-coil or set of coils being included in circuit with a generator and each succeeding energizing-coil or set of coils being in circuit with the induced coils of the next preceding energizing-coils of the series.
5. In a system for electrical transmission of power the combination of an alternating-current generator, a motor with an energizing coil or coils connected with the generator, secondary coils in inductive relation to said energizing-coils, and energizing-coils in circuit therewith arranged in substantially the manner set forth to produce a movement or rotation of the points of maximum magnetic effect of the motor, as set forth.
6. In an electromagnetic motor the combination of independent energizing-circuits, one for connection with a source of alternating currents, the other in inductive relation to the first, whereby a rotary movement or projection of the field-poles will be produced by the conjoint action of the two and an armature mounted within the influence of the field produced by the energizing-circuits and containing closed coils or circuits, as set forth.



From TeslaMotors:



Rewind all the way to 1888: Nikola Tesla invented the polyphase AC induction motor (US Patent numbers 381968, 381969, 382279, 433700, 433701, and 555190). Tesla was interested in such a motor because it was simpler, and because it could be driven directly from AC transmission lines or from a dynamo without need for rectification. Tesla worked to perfect the AC induction motor, and most of the motors we use in plug-in appliances and equipment are directly derived from his work.



Of the use by Tesla Motors of the induction motor, see

http://cleantechnica.com/2016/05/30/nikola-teslas-19th-century-induction-motor-ideal-choice-21st-century-electric-car/

The July 10 "moment of nature" did Trinity River. Recall also the April 3 "moment of nature": We leave you this Sunday Morning among the flowers that bloom in spring at Dallas' Great Trinity Forest.

NPR on Stanford University's "arginine" patent

From the NPR post Bodybuilders Beef Over A Workout Supplement — And A Stanford Patent :


Katharine Ku, director of the Stanford OTL, says the purpose of the office is "to transfer the technology from the university to the commercial sector. We want our inventions to be developed, by companies, and then sold to the public."

When I brought up the arginine patents and Kramer's use of them, my conversation with Ku grew tense. "You have an angle on this one that is not legit to me," she said. "I mean, they are a company. They sell product."

I asked Ku how much research they'd done on ThermoLife and Kramer before awarding the license. "I don't think we're going to look into their personal backgrounds," she replied. She also said Stanford isn't getting very much money from all the lawsuits brought by ThermoLife.

(...)


In case of Kramer, the arginine patent was based on federally funded research by a Stanford professor in the early 1990s. The study, funded by the National Institutes of Health, initially showed that regular arginine use could help people with clogged arteries by increasing blood flow.



Claim 1 of US 6,117,872:

1. A method for enhancing physical performance of a mammal prior to said physical performance, said method comprising:
administering
to said mammal prior to said physical performance as the active
ingredient an amino acid composition consisting of at least one amino
acid selected the group consisting of arginine and lysine of at least
about 60 mg/kg/day within 24 h of said physical performance.

link: http://www.google.com/patents/US6117872


Background:

http://news.stanford.edu/news/2005/january19/med-arginine-0119.html

US Patent 6642208

Anthony Hamlet sworn in; plagiarism charge a straw man?

Anthony Hamlet was sworn in as superintendent of Pittsburgh schools on July 1, 2016, after enduring criticisms of his resume for plagiarism and falsification (bolstering).

Of the plagiarism issue, from within a post at the New Pittsburgh Courier:



In an official statement released afterwards, [Board President Regina ] Holley said she and the majority of the board did believe Hamlet’s use of material from a 2013 Washington Post editorial constituted plagiarism.

“At the heart of the debate over Dr. Hamlet was the question of whether he plagiarized the Washington Post in his resume. When this first became an issue, Dr. Hamlet told me the words he used to describe his educational philosophy came from a speech that someone wrote for him more than a year ago – and he did not know their origin,” she wrote.

“Plagiarism is legally defined as “the deliberate and knowing presentation of another’s ideas,” and that is not what Dr. Hamlet did. However, he also made it clear that he ultimately takes responsibility for what he included in his resume and he regrets the unintended consequences this has caused.”



link: http://newpittsburghcourieronline.com/2016/07/04/hamlet-sworn-in-as-superintendent-after-retention-vote

IPBiz notes a definition of plagiarism from Black's: The act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.

As to the text -- a speech that someone wrote for him --, one wonders if giving a speech as one's own that someone else wrote is in itself plagiarism. And, blaming some unknown "someone" for the copying is the old "the grad student did it" defense, which usually does not work.

Without reaching the issue of whether copying one sentence from the Washington Post was plagiarism, one notes the minimal discussion of Hamlet's bigger "sin," the deliberate and knowing bolstering of his accomplishments on the resume. Here, the plagiarism charge was a straw man that concealed the real problem.

See also:
http://ipbiz.blogspot.com/2010/03/plagiarism-blame-staffer.html

Harvard University sues Micron over Roy Gordon patents, US 6,969,539 and 8,334,016

The technology is atomic layer deposition (ALD) which can be used for DRAM manufacture. The suit was filed June 24, 2016 in D. Mass. The listed plaintiff is "President and Fellows of Harvard College," and Pepper Hamilton represents Harvard.

link: http://www.harvard.edu/media-relations/media-resources/popular-topics/patent-enforcement

Australian law professor threatened plagiarism charges to exact sexual favors from female law students

From the Canberra Times:


A former University of Canberra law professor accused of sex offences against six female students had threatened to report them for alleged plagiarism, court documents reveal.



link: http://www.canberratimes.com.au/act-news/former-uc-academic-accused-of-sex-offences-threatened-students-over-plagiarism-20160704-gpy2tc.html

RAPID LITIGATION MAN AGEMENT LTD. (FORMERLY CELSIS HOLD INGS, INC.) wins 101 issue at CAFC

A decision of the ND Illinois was reversed and claims were found to survive 101 analysis under Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014).


Bloomberg wrote of the case:


The dispute is over a way to preserve a type of liver cell known as hepatocytes, used for things like testing the toxicity of a new drug. There’s a limited supply for researchers and the cells have a short lifespan in labs, and it was earlier believed they could only be frozen once and then had to be discarded.

The inventors on the patent discovered that some hepatocytes could survive multiple freezings and thawings, and created a process to weed out the cells that were most likely to still be viable after the second freezing.

Were this not be eligible for a patent, “no one could ever get a patent on cryopreservation, or on any other innovative method that acts on something that is naturally occurring,” Chief Judge Sharon Prost wrote for the three-member panel.



link: http://www.bloomberg.com/news/articles/2016-07-05/personalized-medicine-gets-boost-from-court-ruling-on-patents

[One might question Bloomberg's use of "weed out" as to the viable cells. The claim notes: cryopreserving the recovered viable hepatocytes to thereby form said desired preparation of hepatocytes without requiring a density gradient step after thawing the hepatocytes for the second time ]


The CAFC found the patent claims survived BOTH prongs of the Alice test.
Of the second prong:




Even if LTC were correct that the ’929 patent
is “directed to” hepatocytes’ natural ability to survive multi-
ple freeze-thaw cycles,
and that we must proceed to step
two, we would find the claims patent-eligible at that point as well.
Under step two, claims that are “directed to” a
patent-ineligible concept, yet also “improve[] an existing
technological process,” are sufficient to “transform[] the
process into an inventive application” of the
patent-ineligible concept. Alice, 134 S. Ct. at 1358 (quoting
Mayo, 132 S. Ct. at 1299) (discussing
Diamond v. Diehr, 450 U.S. 175 (1981). The claims
of the ’929 patent do precisely that: they recite an improved
process for pre-
serving hepatocytes for later use. The
benefits of the improved process over the prior art methods are signifi-
cant.


ALICE O. MARTIN, of Barnes & Thornburg LLP, Chicago, IL, wrote an amicus curiae brief for Biotechnology Industry Organization, supporting the patentee.

CAFC interprets the "patent dance" of the Biologics Act (BPCIA ) in favor of patentees

Regulatory Affairs noted the importance of the case:


The ruling has major implications for when biosimilars can be launched and it follows the US Supreme Court’s request in late June that the solicitor general provide more information on whether the highest court in the US should review the terms of this so-called “patent dance,” the rules of which govern how biosimilar and reference product manufacturers must work out their patent issues as established by the Biologics Price Competition and Innovation Act of 2009 (BPCIA).



From the conclusion of the CAFC decision:


Apotex would infer an outsize consequence from the
mere modesty of the role played by (9)(B)’s mention of
(8)(A). Apotex ’s proposed inference from (9)(B)
would implicitly make (8)(A) neither mandatory nor standalone,
despite (8)(A)’s language, and
would reintroduce the very problems
of rushed litigation —over patents the applicant
is empowered to prevent being litigated earlier
—that (8)(A) was enacted to avoid.

The inference that Congress
rendered unavailable direct injunctive enforcement of
(8)(A)’s plain terms is unwarranted.
We conclude that an applicant must provide a refer-
ence product sponsor with 180 days’ post-licensure
notice before commercial marketing
begins, regardless of wheth-
er the applicant provided the (2)(A) notice of FDA review.
Because the parties here stipulated to the remaining
preliminary-injunction factors, see
eBay Inc. v. Mer-
cExchange, L.L.C., 547 U.S. 388, 394 (2006), we affirm the
district court’s grant of a preliminary injunction
without addressing those factors.

CAFC interprets the Biologics Price Competition and Inn ovation Act of 2009 (Biologics Act or BPCIA ); Apotex loses

From the conclusion:


Apotex would infer an outsize consequence from the
mere modesty of the role played by (9)(B)’s mention of
(8)(A). Apotex ’s proposed inference from (9)(B)
would implicitly make (8)(A) neither mandatory nor standalone,
despite (8)(A)’s language, and
would reintroduce the very problems
of rushed litigation —over patents the applicant
is empowered to prevent being litigated earlier
—that (8)(A) was enacted to avoid.

The inference that Congress
rendered unavailable direct injunctive enforcement of
(8)(A)’s plain terms is unwarranted.
We conclude that an applicant must provide a refer-
ence product sponsor with 180 days’ post-licensure
notice before commercial marketing
begins, regardless of wheth-
er the applicant provided the (2)(A) notice of FDA review.
Because the parties here stipulated to the remaining
preliminary-injunction factors, see
eBay Inc. v. Mer-
cExchange, L.L.C., 547 U.S. 388, 394 (2006), we affirm the
district court’s grant of a preliminary injunction
without addressing those factors.

Plagiarism issue with "Billionaire's Road Map to Success” ??

An interesting plagiarism issue arises out of a story on Trump Institute by the New York Times, as later discussed by Fox News:


The 2006 Trump Institute instructional book contained material from a book in a set titled “Real Estate Mastery System,” published in 1995 by Success magazine. The plagiarized pages were discovered by the Democratic Super PAC American Bridge, The [New York] Times reported.

Trump Institute operators rented out hotel ballrooms across the country, promising students they would hear Trump's “wealth-creating secrets and strategies." Trump Institute was distinct from Trump University, which was a distance-learning business centered on making money in real estate.

The editor of the Trump Institute publication, Susan G. Parker, denied responsibility when contacted by the New York Times, and said a lawyer for Irene and Mike Milin, who were part owners of Trump Institute, provided her with background material for the book.



link to FoxNews story: http://www.foxnews.com/politics/2016/06/29/trumps-seminar-textbooks-reportedly-have-at-least-20-plagiarized-pages.html


The Hill noted:


The Times compared an an excerpt from the Trump Institute's 2006 book, "Billionaire's Road Map to Success,” alongside the 1995 book, "Real Estate Mastery System: Mortgage and Finance,” and found a more than 100-word passage was lifted from the older book. The Democratic super-PAC American Bridge first noticed the similarity, according to the Times.



link: http://thehill.com/blogs/ballot-box/presidential-races/285991-new-york-times-reports-plagiarism-in-trump-textbooks

In this situation, who is guilty of copying without attribution and possible copyright infringement?

While GE goes after Pratt/United Technologies over jets, Toyota has US 20150246720

The three paragraphs of published US application 20150246720:




[0001] The present disclosure pertains to a vehicle that can be flown as a fixed wing aircraft and driven as a land vehicle. More specifically, the present disclosure is directed to stackable wing architectures therefor.

[0002] Flying has always been a dream central to the history of humanity. Aerocars or roadable aircraft are defined as vehicles that may be driven on roads as well as take off, fly, and land as aircraft. Vehicles that demonstrate such capability provide operators with freedom, comfort, and the ability to arrive quickly to a destination as mobility becomes three-dimensional yet remains private and personal. Such vehicles, however, may require various trade offs to facilities operations in the flight mode and the roadable mode.

[0003] Typically, a body of a land vehicle is relatively short to facilitate parking and road maneuverability, whereas a body of an aircraft is relatively long to facilitate flight stability and control authority. In one conventional roadable aircraft, each wing folds upward at a root and downward a mid-span location to stow against the fuselage in the land mode. Although effective, the more numerous the fold locations, the greater the weight and complexity that necessarily influences operability in each mode. Further, such wing stowage may limit operator aft and side views conducive to effective operations in the road mode.





The first claim:


A wing comprising: an upper surface that forms a generally fixed shape; and a lower surface adjacent to said upper surface, wherein said lower surface is morphable between a stowed shape and a deployed shape, wherein said wing has a compact shape of reduced thickness when said lower surface has said stowed shape, wherein said wing has an airfoil shape when said lower surface has said deployed shape, wherein said wing is one of a multiple of wings stackably located atop a body of an aerocar in a roadable mode and selectively extendable away from said body in a flight mode, wherein said wing has said compact shape in said roadable mode, and wherein said wing has said deployed shape in said flight mode.



Claim 18:


A method of morphing a wing comprising: morphing a lower surface of the wing between a stowed shape and a deployed shape, wherein the lower surface curves toward an upper surface of the wing in the stowed shape and curves away from the upper surface in the deployed shape, and wherein morphing includes selectively heating a bistable composite within the lower surface to elevate the temperature of the bistable composite and effect movement of the lower surface between the stowed shape and the deployed shape.




The second listed inventor is Robert Roe of Upper Saddle River, NJ.

Of GE and Pratt:

At the end of a story at Bloomberg titled GE Wins Shot at Voiding Pratt Patent in Jet-Engine Clash one finds text about IPR challenges by GE against United Technologies:


GE submitted additional petitions challenging more Pratt patents in April, and even more on June 28. Those cases are pending an initial review by the agency.

The Patent Trial and Appeal Board, where the petitions were filed, has become known as a “death squad” for patents because of the high rate of rejection. It’s easier to invalidate a patent at the agency than in district court because different standards are used. The Supreme Court on June 20 upheld the review process used by the agency.



Obviously, these challenges are not about dubious software patents.

Also, IAM Media wrote in January 2016


But to what extent is the system truly working as it should to provide an efficient and cost effective way of challenging patent validity? It seems unlikely that any of the authors of the America Invents Act (AIA) foresaw those companies with the deepest pockets filing challenge after challenge against patent owners.



Although IAM noted there was some "justice" in NPEs getting attacked by multiple IPR filings, one recalls productive companies can be victims of IPRs filed by NPEs.

In August 2015, IPBiz wrote of the denial of the Kyle Bass petition against Acorda's MS symptom drug Ampyra in the post
The IPR petitions of Kyle Bass on Acorda/Ampyra denied by PTAB . That related to IPR2015-00720 and IPR2015-00817. But Kyle Bass won the next time around in IPR2015-01850. The first time around Bass failed to convince PTAB that a certain poster session was prior art.
The second time around Bass succeeded in convincing PTAB that Acorda's S-1 statement of 26 Sept. 2003 was prior art.